In September 1997, an overweight black woman was excluded from a criminal trial jury in Binghamton because of a prosecutor’s claim that fat people tend to take sides with the defense.

Now, the black man who was convicted of gun and drug charges in that case may get a new trial.

Seth Dolphy, 32, a state prison inmate, claims the prosecutor used his opinion about the woman’s weight only as a pretext for keeping an African-American off the jury.

A federal appeals court that heard legal arguments on the case in Buffalo last fall has ordered a federal district judge to take a second look at the case of Dolphy, who was convicted in the case by a Broome County jury.

Dolphy, who is from Binghamton, claims he should receive a new trial because his constitutional right to a jury of his peers was violated. He was convicted by an all-white jury and sentenced to a prison term of at least 14 years.

The decision of the Second U. S. Circuit Court of Appeals to order a new look at the case was applauded by Dolphy’s attorney, Robert A. Culp of Garrison.

The claim that overweight people make unfair jurors makes no sense, Culp told The Buffalo News on Monday.

“I don’t claim to have made a study of this, but to me, you don’t look at somebody’s skin color, their weight or their appearance to determine how good a juror they will make,” Culp said. “I thought we were past that kind of thing in our society.”

In a 1986 case called Batson v. Kentucky, the U. S. Supreme Court ruled that a person cannot be kept off a jury because of race. The high court ruled that a lawyer must have a race-neutral reason for asking that someone be excluded from a jury.

According to court papers, the prosecutor in the Dolphy case — who was not identified by name — told a judge that he wanted a black woman kept off the jury because she was obese.

“I do not select overweight people on the jury panel for reasons that, based on my reading and past experience, heavyset people tend to be very sympathetic toward any defendant,” the prosecutor said. [Mark Godsey]